Clashing over Hazmat Shipping

Approximately 1.7 million carloads of hazardous materials are transported by rail throughout the U.S. each year. Government figures show that 99.998% of these shipments reach their final destination without releasing any hazardous chemicals caused by an accident. Moreover, railroads have reduced overall hazmat accident rates by 90% since 1980. But a deadly train collision that spread a toxic cloud over Graniteville, S.C., last winter and other recent accidents are raising new concerns about the risk of transporting dangerous cargo, particularly in an age of heightened awareness of terrorism.

Former top presidential homeland security adviser Richard A. Falkenrath recently told Congress that of all the various remaining civilian vulnerabilities in America today, "one stands alone as uniquely deadly, pervasive, and susceptible to terrorist attack: toxic-inhalation-hazard (TIH) industrial chemicals, such as chlorine, ammonia, phosgene, methyl bromide, hydrochloric, and various other acids." Pointing out that there is "no security whatsoever along TIH transportation routes," he said the deaths and injuries that could be inflicted by a successful strike "present a mass-casualty terrorist potential rivaled only by improvised nuclear devices, certain acts of bioterrorism, and the collapse of large, occupied buildings."

Falkenrath, now a senior fellow at the Brookings Institution, noted that TIH chemicals, which in some cases are identical to the chemical weapons used in World War I, are routinely moved in vast, multiton quantities through America's largest cities. He identified the transportation of these chemicals as being exactly the kind of vulnerability that al Qaeda terrorists had exploited to such deadly effect on Sept. 11, 2001: "an inherently dangerous, poorly secured system in our midst."

Because a tank car carrying chlorine or another toxic chemical poses a major safety risk even without the potential threat of terrorism, some federal and local officials are demanding action. "South Carolina has learned all too well the dangers of railway accidents, particularly those involving toxic chemicals and freight," Sen. Lindsey O. Graham (R-S.C.) remarked earlier this year as he introduced a bill to overhaul rail safety regulations. The measure, cosponsored by Sen. Charles E. Schumer (D-N.Y.), would prohibit older railcars from carrying toxic materials, bring on more safety inspectors, and mandate investigations of the safety standards at major rail companies.

The legislation was prompted by the Graniteville accident in January, one of the worst rail disasters in recent U.S. history (C&EN, Jan. 17, page 11). In a report issued last month, investigators from the National Transportation Safety Board said a train crew rushing to finish its work neglected to realign a hand-operated switch, allowing an oncoming Norfolk Southern train to steer onto a side track and collide with a parked freight train that included tank cars of chlorine. One of the cars ruptured, causing a cloud of toxic gas to blanket the area. Eight residents of Graniteville and the locomotive engineer operating the train died after inhaling the gas, 250 people were injured, and 5,400 others were evacuated from the small town, about 50 miles southwest of Columbia, S.C.

"If this accident occurred in Washington, D.C., or Boston or New York, we would not be talking about a handful of deaths. We would be talking potentially tens of thousands of deaths that would have occurred in a very short period of time," Rep. Edward J. Markey (D-Mass.) said in a statement on the House floor as he introduced legislation that would direct the Department of Homeland Security (DHS) to order the rerouting of extremely hazardous materials around sensitive areas. "Across the country, enough chlorine to kill 100,000 people in half an hour is routinely contained in a single rail tank car that rolls through crowded urban centers without adequate security protections," Markey asserted. "The industry claims it can't afford to beef up security and reroute the most dangerous materials. The reality is that we can't afford not to."

Activists say the availability of high-powered rifles and other weapons and the accessibility of urban rail lines make shipping highly toxic materials through cities a bad idea. "Protecting America from weapons of mass destruction is the responsibility of all levels of government," says Brent Blackwelder, president of Friends of the Earth. "And if the President fails to act to protect our cities from hazardous rail cargoes, then local governments should have the power to act instead."

Charging that the federal government has not secured the nation's rail lines, the District of Columbia in February became the first local government to pass legislation banning shipments of "ultrahazardous" cargo through its city limits. The U.S. Court of Appeals for the District of Columbia Circuit has since put the ordinance on hold until a legal challenge by the railroad industry and the Bush Administration is resolved.

The measure, sponsored by Councilwoman Kathy Patterson (D), requires shippers of chlorine and other toxic chemicals to receive a permit from the D.C. Department of Transportation before they can move large amounts of these materials through a 2.2-mile exclusion zone surrounding the U.S. Capitol. Shippers could obtain a permit only upon showing that there is no practical alternative route lying outside the exclusion zone that would not make the shipment cost-prohibitive.

"The District acted because of the failure of the Administration and Congress to enact sensible policies requiring rerouting away from high-threat, high-density communities," Patterson explained. "We are one of the top two target cities for terrorist attacks and have to do everything in our power to prevent terrorist attacks."

Shippers are concerned that if the D.C. government prevails, many other local governments will enact similar restrictions or outright bans on the transportation of hazardous materials by truck or rail into or through their jurisdictions. At present, five other major cities-Baltimore, Boston, Chicago, Cleveland, and Philadelphia-are moving forward with efforts to reroute shipments of toxic chemicals. Pittsburgh has also expressed an interest in restricting hazmat shipments through its boundaries, as have Atlanta and Las Vegas.

Like the D.C. statute, measures introduced in Baltimore and Chicago would create security zones through which shipments of certain chemicals could pass only in limited circumstances. Legislation introduced in the Baltimore City Council would restrict hazardous materials shipments by vehicle or railcar within the geographic limits of the city without a permit, except in cases of emergency. A resolution introduced in the Chicago City Council would prohibit any rail transportation of hazardous solids or liquids into an area within one-half mile of the city limits, with or without a permit, and prohibit rail transportation of hazardous waste within a similar zone without prior notification of the city's police, fire, and environmental departments.

In Cleveland, the city council is considering an ordinance that would prohibit hazmat shipments on one of the four rail lines that run through the city, unless the final destination is Cleveland. Freight trains hauling hazardous cargo through the area would be forced to avoid the Lakefront Rail Line, which passes close by downtown office towers and densely populated neighborhoods. A proposal under consideration in Philadelphia would allow shipments of hazardous materials to customers inside the city, but would bar dangerous cargo from passing through on the way to points north or south.

In Boston, two members of the city council have offered a bill that would prohibit hazmat shipments within a 2.5-mile radius of Copley Square, a central urban location. The exclusion zone "would impose no significant burden on interstate commerce, but it would afford the residents of and visitors to the city of Boston the safety and security mechanisms required to protect and preserve the public welfare," the legislation states.

CSX Transportation, which is fighting the D.C. hazmat ban in federal court, also operates rail lines through Baltimore and Chicago. "Everyone is watching for the result of the D.C. court case," a CSX spokesman says. "It will certainly provide a clear indication of the direction these ordinances will follow." CSX and other railroads maintain that locally based restrictions on rail movements in any form are unconstitutional. "They all want to regulate interstate commerce, and that issue belongs in the federal courts and before federal policymakers," the spokesman remarks. Under the Commerce Clause of the U.S. Constitution, the federal government has the power to promote and regulate interstate commerce.

"No one disputes that efforts should be made to increase hazmat safety and security where practical. Railroads understand this better than anyone," Association of American Railroads President Edward R. Hamberger told the Senate Commerce Committee at a hearing on railroad security in October. "The transport of certain hazardous materials has the potential to be a 'bet the business' activity for railroads," he remarked. The industry is required by law to carry these shipments, he noted, even though "it is not possible to fully insure against a truly catastrophic incident."

Efforts to protect citizens by banning the shipment of hazardous chemicals through heavily populated cities may be well-intended, Hamberger acknowledged. But the end result would likely be reduced safety and security, he contended. "Banning hazmat movements in particular jurisdictions would not eliminate risks, but would instead simply shift them from one place to another," he declared. "In shifting that risk, it could foreclose transportation routes that are optimal in terms of overall safety, security, and efficiency."

The industry official pointed out that the rail network is not similar to the highway network, where there are myriad alternate routes. In the rail industry, rerouting could add hundreds of miles and several days to a hazmat shipment, and those additional miles and days could be on rail infrastructure that is less suitable for handling dangerous cargo, Hamberger testified.

In a brief opposing the D.C. ordinance, the U.S. Department of Transportation observed: "The risks associated with the transportation of hazardous materials correspond to the amount of time in transit. As a general matter, this is accomplished by having the shortest route having the best quality of track." When local governments ban hazardous materials from their communities, "they shift the risk to others," DOT added. "It raises everyone's risk and clogs the transportation system."

Banning hazmat shipments in even one city would create problems, Hamberger told the committee. "But banning them in cities across the country would cause immense confusion and economic disruption nationwide and would virtually shut down hazmat shipments by rail in this country."

He added that restricting hazmat movements by rail would likely lead to many more shipments by truck, which would significantly increase the chance of a release caused by an accident. Railroads and trucks generate roughly equal hazmat ton-mileage, but trucks have 16 times more hazmat releases than railroads, according to the Pipeline & Hazardous Materials Safety Administration. Between 1994 and 2003, there were 106 fatalities in hazmat-related incidents on the highways, compared with six on the rails.

Because rail transportation is inherently interstate in nature, Hamberger argued that the safe rail transport of any commodity, including hazardous materials, requires uniform standards that apply nationwide. "If local communities were free to pass their own laws, we would be left with a patchwork quilt of local laws that could make it impossible to ship these commodities from where they are produced to where they are needed," he remarked. Because hazardous materials must be transported, the industry official said the focus should be on shipping them safely.

Chemical manufacturers support the railroad industry's bid to overturn the D.C. law and oppose moves by other cities to enact similar bans on hazmat transportation. Although chemicals are transported by various modes, in many instances they must move by rail because of product characteristics, distance, customer preference, shipment size, and other factors. Each year, about 150 million tons of chemicals and allied products are shipped by rail, providing railroads with $5 billion in freight revenue. Chemical firms also maintain their own tank car fleets as well as other types of specialized rail equipment and facilities.

Thomas E. Schick, a senior director at the American Chemistry Council (ACC) and a transportation law attorney, argues that if local governments are allowed to reroute hazmat traffic around their cities, the result will be chaos. "ACC understands that the residents and governments of D.C. and other localities are concerned about hazmat shipments. But the chemical industry also understands that people throughout the country depend on the safe delivery of these products for a wide array of critical uses every day," Schick says. "Restrictions on these shipments would have a devastating impact on the nation's economy, as well as the essential functions of life in a modern society." Allowing local governments to prohibit or interfere with hazmat transportation would not improve overall safety and security, according to the ACC official.

Schick says interstate commerce depends on states and local jurisdictions not banning hazmat shipments. "In fact, such actions would make transportation of vital products less safe, less secure, and less reliable," he declares.

Schick also disputes the charge that the federal government has failed to tighten hazmat transportation security. In March 2003, he notes, the Department of Transportation imposed security requirements on all shippers and carriers of placardable amounts of hazardous materials by all transportation modes. These regulations specifically require a company to develop and implement a security plan to address "the assessed security risks of shipments of hazardous materials covered by the security plan en route from origin to destination, including shipments stored incidental to movement." Schick says this regulatory scheme grants the carrier discretion to select routing options as part of its security plan. "A routing ban on hazardous materials would make it impossible for carriers to comply with their individualized security plans, and such restrictions are preempted under the Hazardous Materials Transportation Act," he notes.

While local governments, shippers, and carriers await the outcome of the legal battle over the D.C. ordinance, several bills have been introduced in Congress this year that would require the federal government to order the rerouting of hazardous chemical shipments away from densely populated areas. Markey's proposal would require DHS to determine if there are alternative, less risky routes for the transportation of extremely hazardous materials through broadly defined "areas of concern."

The bill also mandates the use of physical security measures to ensure the integrity of pressurized tank cars, the deployment of additional security personnel, and increased surveillance technologies and barriers. It also requires the creation of terrorism response plans and training in transportation security for rail workers and emergency response personnel.

Similar legislation sponsored by Sen. Joseph R. Biden Jr. (D-Del.) would require DHS to develop a comprehensive, risk-based strategy to deal with rail shipments of extremely hazardous materials. It would allow local officials to petition the department to become a "high-threat corridor" around which particularly hazardous material would be rerouted.

"The current state of our rail security system is worse than an accident waiting to happen; it is an open invitation to terrorists," Biden declared in introducing his railroad security measure this summer.

Facing strong opposition by the railroads and the White House, advocates of a federal rerouting requirement for hazmat shipments appear unlikely to succeed anytime soon. An attempt by Markey to attach his bill as a rider to legislation authorizing funding for DHS in fiscal 2006 was rejected on a party-line vote last spring.